Relevant sentencing factors
35 In determining the appropriate sentences for the offender, I must take into consideration the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also have regard to the various aggravating factors which are set out in s 21A of the Act. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3) of the Act. I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an "inherent characteristic" of the offence charged.
36 In assessing the gravity of the offences under consideration, I have had regard to those factors which have been identified in the authorities as bearing upon the objective seriousness of offences of this kind: R v Collett (unreported, 7 June 1979, NSWCCA); R v Newell [2004] NSWCCA 183 and R v Falls [2004] NSWCCA 335. It is true that the period of time during which the offender was actually involved in this enterprise lasted for only about 45 minutes. In the scheme of things, that is perhaps not a terribly long period of time. Nevertheless, it is to be observed that the offence is, of its nature, a continuing one. Clearly enough, it continued well after the offender left the premises. A moment's reflection on the offender's part would have enabled him to realise that there was every prospect that, following his departure, the victims were going to be exposed to much more extensive harm than they had already suffered. In fact, it was those very concerns which the offender maintained in his evidence had prompted him to persuade Ms Snibson to drive him home. By walking away from the situation, the offender effectively decided not to provide any assistance to the victims and his decision to do so highlights the real gravamen of his offending conduct.
37 Although the offender was not the major player, his role was nonetheless an important one. His mere presence, alongside others, was essential in ensuring that the resistance of the victims was overcome. I cannot however have regard to the fact that the offences were committed in company as an aggravating factor because that is an element of each of the offences. Although there is no evidence that the offender played any part in planning these offences, there is nonetheless a measure of premeditation on his part insofar as each of the victims was lured to the premises in circumstances in which the offender knew that they were to be tied up and restrained. It is also to be borne in mind that the offender did not know either of the victims and accordingly he had no reason, other than what he said he had been told by Ms Snibson, to bear them any ill-will. Furthermore, he made no endeavour to ascertain whether what he had been told contained any truth whatsoever. In any event, although what Ms Snibson told him may explain why he was motivated to participate in these crimes, it can in no way operate to reduce their gravity. By no measure can the law countenance this kind of vigilante style behaviour.
38 Integral to the offences, involving as they did the restraint of each of the victims in the manner in which I have described, was the infliction of a not insignificant measure of violence upon the victims. Each of them would undoubtedly have experienced very severe discomfiture simply by reason of the manner in which they were tied up. That discomfiture however would have paled into significance when compared to the very real sense of anguish that they each would undoubtedly have experienced. Each of them would have been in a state of high anxiety, for what turned out to be a not inconsiderable period of time, wondering what fate lay in store for them. They were also each utterly defenceless and totally at the mercy of their captors, a matter which was readily apparent to the offender. As I have said it was the offender's callous disregard for the welfare of the victims which marks out his criminality because in the final analysis he had no hesitation in putting his own interests ahead of theirs. In all the circumstances, Mr Stratton SC, who appears on behalf of the offender, realistically concedes that these are serious examples of offences of this kind.
39 There are however a number of mitigating factors upon which the offender is entitled to rely. His pleas of guilty are to be weighed in his favour: see s 21A(3)(k) and s 22 of the Act. I referred at the outset to the circumstances in which he entered his pleas. Mr Stratton contended that although the pleas were entered at a late stage, they still had some utilitarian value such as to entitle him to a discount, albeit one of relatively modest proportions, in accordance with the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383.
40 I am prepared to allow a further small reduction of sentence to the offender on account of the contrition that he expressed in his evidence: s 21A(3)(i). It must be said that his evidence in that respect stands in stark contrast to the attitude which he displayed at the time when his conversations were being intercepted by investigating police. Nevertheless, the offender demonstrated in his evidence that he has now developed some insight into his offending behaviour and a determination to change his ways. That change of attitude is manifest in his promise to assist the authorities, a factor which also entitles him to some amelioration of the otherwise appropriate sentence: s21A(3)(m) of the Act. To that end, the offender has signed an undertaking to give evidence. The Crown informed me that it proposes to call him as a witness in the sentencing proceedings involving Ms Snibson in which, I have been advised, there will be a significant challenge to various aspects of the Crown case. In particular, the Crown will rely upon the evidence which the offender can give concerning the events which took place once Ms Snibson returned to his house after the murders had been committed. The account which he gave of those events appears, on its face, to be plausible. Indeed some aspects of it, such as his evidence concerning the bonfire which he lit in the backyard, is supported by other evidence. The offender is also, as the Crown acknowledged, able to give evidence as to the circumstances in which he was recruited into this enterprise by Ms Snibson. The significance of that evidence is said to arise from the fact that, on the Crown case, she is the principal offender.
41 In assessing the extent of any discount which is to be extended to the offender on this basis, I have had regard to the various factors which are identified in s 23(2) of the Act. It is clear that the assistance should properly be characterised as falling at the lower end of the range. Given the time at which it has been provided, I must inevitably exercise due caution in assessing its "truthfulness, completeness and reliability". I observe that it is common ground that an overall combined figure of 20%, for the pleas of guilty and the promise of assistance, would represent the upper limit of any discount that could be extended to the offender. I am prepared to proceed upon that basis although I am mindful that I must also give effect to the requirement which appears in s 23(3) of the Act. In light of those considerations, I specify that I will allow a discount of 10% for the assistance which the offender has promised to give.
42 It is conceded on behalf of the offender that there must be a measure of accumulation to reflect the fact that he committed two separate offences involving two different victims. Nevertheless it is appropriate, in determining the extent of the accumulation, to have regard to the fact that the offences occurred fairly close together in time and that they occurred during the course of what was one episode of criminality.
43 It was urged upon me that I should have regard to considerations of parity. In each instance I imposed a fixed term of five years imprisonment upon Stacey Lea-Caton for the kidnapping offences. Although I will endeavour to maintain a "due proportion" between the sentences which I imposed upon Lea-Caton for those offences and the sentences which I intend to impose upon the offender, that exercise is not without its difficulties. In respect of Lea-Caton, I found that the kidnapping offences provided the context in which the murders were committed. For that reason I ordered that each of those sentences should run concurrently with the sentences imposed for each of the murders. Those sentences were also of course, being interconnected, subject to considerations of totality.
44 Nor is it easy to directly compare the relative levels of culpability for the kidnapping offences so far as the offender and Lea-Caton are concerned. Nevertheless, it was urged upon me that Lea-Caton's role in relation to the kidnapping offences was more extensive than that played by the offender. In particular, attention was drawn to the fact that he remained guarding the victims for a period of time after the offender had left and during which time, on his own admission, he struck Mr Hosa. So much may be accepted, but I do not regard that feature of the case as giving rise to any significant difference in their roles particularly as it is to be recalled that Lea-Caton was actually living in the premises at the time and may not have had the same avenues for escaping from them as did the offender.
45 I should indicate that I am not prepared, in any event, to uncritically accept everything that the offender said in his evidence. I am inclined to the view that he sought to downplay his role. For example, as I have observed, the offender suggested in his evidence that he had played almost no part in the detention of Ms McKay. However, as the Crown demonstrated in cross-examination, that assertion was at odds with what he is recorded as saying about that aspect of the matter in the listening device material.
46 Whilst I am not prepared to accept to the requisite standard, that it was the offender, as opposed to Lea-Caton, who struck the initial blow to Mr Hosa, it does not seem to me that that significantly reduces his criminality: R v Turner [2004] NSWCCA 340. His pleas of guilty recognise that actual bodily harm was occasioned to each of the victims during the course of the enterprise to which he had agreed to be a party. The fact that he disguised himself during the course of the criminal enterprise, serves to demonstrate that he anticipated that it was going to involve some measure of interference with their well-being. The possibility that some form of violence would be inflicted upon them must also have been within his contemplation right from the outset. He must also have envisaged that the victims may well have put up resistance such as to require the application of a degree of force in order to subdue them. Moreover, even on his version of events, the offender had some awareness that Lea-Caton was in possession of an implement that could be, and indeed was used, as a weapon.
47 There are also various factors which distinguish the subjective cases which were advanced on behalf of the two offenders. In Lea-Caton's favour is the fact that his sentences were significantly reduced to reflect his pleas of guilty and his assistance to the authorities. His culpability for having committed the offences was also reduced to some extent because of his diminished capacity, by reason of his frontal lobe condition, to make rational choices about his conduct. Although the offender is entitled to a discount for his pleas of guilty and for his assistance to the authorities, it is common ground that those factors cannot be afforded anything like the same significance as they assumed in the case of Lea-Caton. Furthermore, unlike Lea-Caton the offender will not, I was informed, be going into protective custody. On the other hand, unlike Lea-Caton, the offender is entitled to a finding of prior good character. He has a good work record and does not have a criminal record of any significance. Not only does Lea-Caton have an extensive criminal record, but it contains a number of offences of violence. Although it was submitted that as between the two of them the offender presented a more powerful subjective case, I am inclined to the view, if anything, that the matters advanced on behalf of Lea-Caton tilt the balance slightly in his favour.
48 I am prepared to accede to a submission that I should make a finding of "special circumstances". That will have the effect of varying, in respect of each offence, the normal statutory proportion between the head sentence and the non-parole period. I will do so because the offender is likely to require a longer than normal period in which to adjust to life in the community after his release from what is his first custodial sentence. He will need particular assistance in achieving his professed objective of curbing his excessive consumption of alcohol, something which, as I have said, was a feature of his life prior to the commission of these offences. Nevertheless, the effective overall non-parole period which I intend to impose represents the minimum period of time which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.
49 Although I have considered a number of other sentences which have been imposed for offences of the same kind as those committed by the offender, I have found them to be of no great assistance particularly as the circumstances of the present case are almost unique. For similar reasons I have been unable to derive a great deal of assistance from the statistics maintained by the Judicial Commission. In that context, see also R v Newell (supra) at para 43. Nevertheless, I note that they reveal that of the 36 offenders who received custodial sentences for this offence in the period between December 2001 and September 2007, head sentences ranging from 18 months to 12 years and non-parole periods ranging from 6 months to 8 years were imposed.
50 Mr Stratton submitted that "for the individual counts, a non-parole period in the order of 5 years would be appropriate". That is of course the same effective sentence which was imposed upon Lea-Caton. He also recognised, as I have said, that some degree of accumulation was then required. The Crown submitted that a non-parole period "could not fall below [a] total period of 7 years for [these] offences". It can thus be seen that there is little difference between the parties in terms of what they contend is the appropriate overall sentence which ought to be imposed. In the final analysis however, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian (2005) 228 CLR 357.
51 As the offender has been in custody since his arrest on 26 April 2006, it is appropriate to order that the sentences shall commence from that date.